1. Where in a proceeding by a wife for divorce and alimony, after both parties have announced ready and a jury has been impaneled for trial, the court, on motion of the defendant, after hearing evidence enters an order requiring the petitioner to convey property, to which she holds legal title, to the defendant husband, and provides that until such conveyance *Page 314 is made the petitioner will not be allowed to prosecute the proceeding, such an order is final in nature and is reviewable in the Supreme Court, although there has been no trial on the main proceeding.
2. Where the wife's petition for divorce and alimony is based upon cruel treatment, and the acts of cruelty are described, and there is recited in the petition that, something like a year before, there had been a separation because of the husband's striking the wife, followed by a reconciliation, and his answer alleges that he conveyed an undivided one-half interest in the home place to the wife as a consideration for the reconciliation, she is not required to reconvey to him the title in the home as a condition precedent to prosecuting her suit for divorce and alimony. This is true even if it is conceded that she received the property as a consideration for the reconciliation, and the court erred in ordering the action stayed until she reconveyed the home to the husband. The rule of law annulling deeds and decrees for permanent alimony by subsequent cohabitation is inapplicable. Nor is there any rescission involved which would require restitution.
3. In such a case there is no provision of law authorizing a trial judge to hear evidence on the question whether or not the wife by her petition is seeking to rescind a contract of reconciliation, and to find that she is doing so and order her to restore by reconveying the property deeded to her by the husband to induce a reconciliation, and prohibit her from prosecuting her divorce and alimony proceeding further until such restitution by reconveying the property has been made.
No. 16327. OCTOBER 11, 1948. Mrs. Fannie S. Levine brought suit in Richmond Superior Court against her husband, Nathan Levine, for divorce and alimony, and against Citizens Southern National Bank, seeking to enjoin it from permitting the defendant to remove anything from his safety deposit box at that bank. The petition alleged in substance the following: In 1946 the petitioner separated from the defendant because of his cruel treatment, and thereafter a reconciliation was had wherein the defendant promised not to again treat the petitioner cruelly, and she returned to live with him. Thereafter he renewed his cruel treatment in violation of his promise made at the reconciliation. No demurrer or special plea was filed, but the defendant filed a lengthy answer, which was later amended to allege that, in consideration of the reconciliation referred to in the petition, the defendant conveyed a one-half undivided interest in their home to the petitioner; that by her present suit she had elected to rescind the reconciliation contract; and that the deed should be canceled. *Page 315
After the parties had announced ready for trial and a jury had been stricken, counsel for the defendant stated to the court that the petition alleged cruel treatment, about which there had been an agreement of reconciliation, and stated that the petitioner was pursuing inconsistent remedies, in that she was claiming a rescission of the reconciliation contract based upon the alleged breach thereof by the defendant, and asserted that in such circumstances she should be required to reconvey to the defendant the property which he gave as a consideration for that agreement. Thereupon the court, without a jury, allowed counsel for the defendant to read from a transcript of testimony given by the petitioner on a hearing for temporary alimony, wherein she said, in answer to a question as to whether or not she insisted that one of the conditions of the reconciliation was that the defendant give her his entire piece of property, "I had asked for it. I wanted it," and upon further insistence upon the same question she answered, "I think I said that." She further testified that they finally agreed that her husband would deed her one-half of the property, and that certain bonds which really belonged to her would be turned over to her, and that it was under these conditions that they went back together.
In rebuttal, the petitioner testified in the present hearing that it was on September 6 when the defendant started fighting her in the house, which fighting brought on the separation. He told her to get to hell out of his house and to get the child outside the house, and that he was going to fight her every morning if she stayed there. Through the efforts of a cousin of hers and a cousin of his they went back together. She had asked for a part of the house as security, so he could not tell her to get to hell out of the house every time he felt like it. She simply could not live with him under those conditions, and he promised that he would not fight her any more, that he would treat her with kindness, and that he would give her a part of the house. That was in September, and they went back together, and nothing was said about the house until the following March, when he gave her a deed to one-half of the house, reciting a consideration of love and affection. She testified further that there was no such thing as a contract, no such thing that if they separated she would give the one-half of the house back to him. If there was any contract, *Page 316 he was the one that broke it. He broke all of his promises. He started mistreating her and cursing her. He told her he wanted a separation. He wanted a divorce, and they separated on August 17. She also testified that she did not require him to give her a deed before she went back to him. They went back together and were living together six months before she got the deed. She did not know how it had anything to do with the reconciliation. There was no such thing as a contract between them.
Thereupon the court entered judgment, reciting that, after a jury had been selected and impaneled to try the case, and before any evidence was introduced, the court's attention was by the defendant called to the fact that the petitioner had elected to rescind the contract of reconciliation made in September, 1946, and described in paragraph 5 of her petition, and that she had not returned to the defendant or offered to return to him the one-half undivided interest in the described premises that was given her as part of the reconciliation agreement. The order recites that the petitioner took the stand and testified that the one-half interest was given to her as part of the reconciliation agreement in September, 1946, and it was ordered and adjudged that in filing her petition she elected to rescind the reconciliation agreement under which she obtained the one-half undivided interest in the described property, and that before she could prosecute her present action she should reconvey that property to the defendant, and "she is hereby ordered to do so." The court asked the petitioner if she was prepared to comply with the order, and upon her refusal the case was withdrawn from the jury, and further prosecution of the same "is hereby stayed." To this judgment the petitioner excepts. 1. The exception here is to an order staying the wife's proceeding for divorce and alimony and adjudicating that she elected to rescind a reconciliation agreement under which she had obtained a deed to an undivided half interest in described property, forbidding the prosecution by her of the pending proceeding until she had conveyed the property which she received under the deed *Page 317 from her husband, and ordering her to execute such a reconveyance. The order or judgment is final as to the rights of the petitioner, which renders it reviewable by direct exceptions, although the main case has not been tried. It would subject her to punishment for contempt of court if not obeyed and would deprive her of the right to have her case tried, and if obeyed she might be precluded from thereafter complaining, because her obedience might constitute acquiescence. The writ of error is not premature. Mendenhall v. Stovall, 191 Ga. 452 (12 S.E.2d 589); City of Cedartown v. Pickett, 194 Ga. 508 (22 S.E.2d 318); Howard v. Howard, 203 Ga. 782 (48 S.E.2d 451).
2. It is provided in the Code, § 30-217, that subsequent cohabitation of the husband and wife shall annul and set aside all provisions made by deed or decree for permanent alimony, without affecting the rights of children. Subsequent cohabitation amounts to novation or cancellation of such agreement, and consequently all matters, including the deeds and decrees which are a part of the provision for alimony are thus nullified. But there is a vast legal difference in the effect of a reconciliation upon a deed made for the purpose of obtaining a reconciliation, and the effect of cohabitation upon a deed made for the purpose of providing alimony. In the present case, construing the evidence which was considered by the trial judge most favorably to the husband, it amounts to no more than that the deed in question was executed for a consideration of the wife becoming reconciled with her husband and returning to live with him. There is no provision in the deed, nor does it otherwise appear, that there was attached to the execution of the deed any condition subsequent. It appearing that the wife has paid and satisfied in full any consideration requiring her to become reconciled and return to her husband, she is, in virtue of that deed, the owner absolute of the title conveyed. McQueen v.Fletcher, 77 Ga. 444; Lemon v. Lemon, 141 Ga. 448 (81 S.E. 118); Young v. Young, 150 Ga. 515 (104 S.E. 149). It was not shown by any evidence that, by the terms of the reconciliation agreement or as a consideration for the deed in question, the wife obligated herself to remain for any fixed period of time with the husband. There is nothing in this record to even intimate that by accepting this deed and the husband's promise not to repeat his cruelties the wife thereby obligated *Page 318 herself to remain with him for life regardless of any cruelty he might inflict and forego any claim which she might have for alimony. She alleges cruelty and describes the cruelties which have occurred since the separation. If restitution be a condition precedent to permitting the wife to charge the husband with cruelties preceding the first separation, then the jury could find against her only as to those previous cruelties, because she has neither restored nor offered to restore, but if they find that she proves cruelties subsequently to the reconciliation, they must grant her relief. It would be a novel legal principle that would compel this wife to suffer his breach or else, as a penalty for seeking redress, surrender that which he had freely given as an inducement for her return to him. There is no such law. Even in cases where agreements settling alimony have been entered and there has been a subsequent cohabitation, which under the Code section above cited would render null and set aside the deed or decree making provision for permanent alimony, it has been held that restitution of the property received under such an agreement is not a condition precedent to a wife's suit for divorce and alimony where there has been a later separation.Powell v. Powell, 196 Ga. 694 (27 S.E.2d 393); Moss v.Moss, 200 Ga. 8 (36 S.E.2d 431). It is, therefore, obvious that the rule requiring restitution as a prerequisite to rescission, and the rule providing that when an election of remedy has been made another inconsistent remedy will be denied, and the numerous decisions applying these rules cited in the brief of counsel for the defendant in error, are inapplicable here.
3. But in the interest of clarifying the question of procedure, we prefer to base our reversal of the judgment both upon the ruling in the preceding division of the opinion and the further ground that the trial judge in the circumstances shown was wholly without authority to render the judgment complained of. There is no provision of law for the trial judge to thus interrupt the orderly trial of such a case, and in the absence of a jury hear evidence touching a matter concerning which there is no prayer for relief, and based upon such evidence, irrespective of what it might show, enter a judgment prohibiting the petitioner from proceeding with her action and compel her to part with property, to which she has the legal title, as a condition precedent to further *Page 319 prosecution of her case. But, upon the question whether or not the petitioner was in effect attempting to rescind a contract without making restitution, if both the law and the evidence were against her, the only legal procedure in such a case would be by demurrer or special plea, which would require a trial by a jury or trial of the main case with proper instructions to the jury, ending with a jury verdict and judgment of the court based thereon, and fixing the rights of the parties according to law. For the twofold reason that the evidence shows no ground for rescission, and the court was without lawful authority to render the judgment complained of, that judgment must be reversed.
Judgment reversed. All the Justices concur, except Bell, J.,absent on account of illness.